A review of America's Constitution: A Biography, by Akhil Reed Amar
In a valuable postscript to his new book, Akhil Reed Amar summarizes the ambitious scope of America's Constitution: A Biography. He has attempted, he writes,
to unite law, history, and political science; to view the [Constitution] over its entire life span; to see how various textual provisions and institutional patterns fit together; to ponder both rights and structure, and to examine their interrelation; to analyze both constitutional politics…and constitutional law…; to attend to all the branches of government, and not just the judiciary; to weigh state constitutionalism alongside the federal document; to consider both domestic- and foreign-policy dimensions of America's Constitution; and to show the reader both the core situations in which a given text was meant to apply and salient instances where a text was plainly not meant to apply.
Without doubt, this is a bold book. And remarkably, Amar, a Yale Law School faculty member, has actually done what he set out to do. He has succeeded in writing what is quite possibly the best single volume on the Constitution since the student edition of Joseph Story's Commentaries on the Constitution, published nearly two centuries ago.
At a time when law books have become very specialized reading, Amar is no less ambitious in choosing his audience. His constitutional "biography" is intended for "undergraduates, law students, graduate students, history buffs, civil libertarians, opinion leaders, politicians, judges, lawyers, teachers, professors, and general-interest readers." Certainly, any of these groups could profit from this wide-ranging volume.
Most books about the Constitution deal with the limited circumstances surrounding its drafting or with the development of different interpretative doctrines, or focus solely on particular branches of government or particular amendments. Amar rightly claims that such a limited focus does not allow us to appreciate the document's real purposes and its true genius. Of course, it is still possible to disagree with aspects of his reading; but Amar even helps his critics by addressing what their quibbles are likely to be. By exploring his own limitations he has graciously and, one is tempted to say, humbly behaved in a manner atypical of law professors in general, and Yale ones in particular.
In his previous book, The Bill of Rights: Creation and Reconstruction (1998), he turned the conventional wisdom on its head, arguing that the original ten amendments were meant primarily not to protect minorities but to empower popular majorities. Here, in another interesting maneuver, he finds the original Constitution at the same time more democratic and more devoted to protecting slavery than most scholars had thought. The story he tells in America's Constitution concerns the gradual aggrandizement of the document's democratic aspects and the eventual obliteration of its racial animus. This gives the book thematic unity, but at the expense of neglecting some key distinctions. For instance, he treats republicanism and democracy as the same thing. Most of the founders would have disagreed, insisting on crucial distinctions between republican governments that employed representation and prevented (or at least mitigated) majority faction, and democratic governments that did not. While "popular sovereignty" is undeniably at the heart of the Constitution, it is not at all clear that "We the people" favored pure popular rule, as Amar believes. His lavish praise for the Civil War's purportedly democratic outcome, the Progressive Amendments, and the federal government's explosive growth at the expense of the states may not be quite so warranted. Furthermore, he agrees with the way the Supreme Court has incorporated the Bill of Rights to restrict state and local governments. Still, to his credit, he appears to understand the irony of applying the First Amendment's establishment clause against the states, since that clause was actually designed to preserve state establishments of religion.
But if sometimes Amar simply reaffirms the liberal pieties that prevail in the legal academy, at other times he offers some comfort to conservatives. His understanding of the president's "commander in chief" powers, for example, which he uses to justify President Lincoln's controversial wartime measures, could be easily adopted by the Bush Administration to support wiretaps, Guantanamo detentions, and the Patriot Act. Amar also understands, better than most academics, the powerful, beneficial role that constitutional amendments can play in implementing popular sovereignty. Though he hints that there may be some legitimate means of amending the Constitution outside the cumbersome Article V procedures (there are not), he at least appears to believe that it is the American people's continuing responsibility, exercising self-government, to make use of Article V.
Akhil Amar doesn't always succeed in rising above the current prejudices of the chattering classes, but he is still about as fair-minded as American academics get, and his ability to turn an amusing phrase sets him apart. Writing on the differences between the Articles of Confederation and the Constitution, he explains that "The new Congress would vote member by member, as individual lawmakers. In sum, the old Congress consisted of states' men; the new congress would consist of statesmen." In the course of elucidating the Second Amendment, he writes that "history confirms a republican reading of the Second Amendment, whose framers generally envisioned Minutemen bearing guns, not Daniel Boone gunning bears." And observing that female suffrage succeeded first in the Western states because men there wanted to attract more women, Amar notes, "By letting women vote with their hands, perhaps Western men hoped that women would vote with their feet—and head West."
America's Constitution: A Biography is thus not only a work of considerable erudition, but of wit. One of our leading constitutional scholars has made a credible and at times delightful bid to remove that document from the exclusive possession of scholars and politicians and give it back to the people themselves. Although not without its blemishes, this is likely to be regarded as one of the most important books on American government in the early 21st century. And what's more, it will deserve the acclaim.